The Migration Amendment (Strengthening Employer Compliance) Bill 2023: Enhanced Protection for Temporary Migrant Workers

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May 26, 2024

In February, the Migration Amendment (Strengthening Employer Compliance) Bill 2023 was passed in parliament with unanimous support and will come into effect on the 1st of July 2024. The aim of this legislation is to better protect the rights of migrant workers and create a more transparent and fair working environment for all, particularly those on temporary work visas who may be more vulnerable to exploitation. To work towards this, a number of measures will be implemented including harsher penalties for offences, the introduction of prohibition notices, publicly disclosing prohibited employers, repealing Section 235 of the Migration Act, and granting new powers for authorities. In this blog, key features of the Migration Amendment (Strengthening Employer Compliance) Bill 2023 will be explored in further detail.

New Employer Sanctions

Employer Sanctions put the responsibility on the employer to check the working rights of its employees. Under this new legislation, it will be an offence to coerce or pressure a migrant worker to accept a work arrangement that violates their visa conditions. This targets employers who exploit temporary visa holders by forcing them to work beyond their legal limits, such as the 24 hour per week cap for international students or the 6 month restriction for working visa holders. It also creates new criminal offences and civil penalties for offences in relation to work, such as underpayment, sexual favours, surrendering a passport, or accepting unsafe housing arrangements. This is broadly captured in the definition of ‘arrangement in relation to work’ in the Bill, which addresses the variety of ways in which employers can coerce and exploit migrants.

Penalty Adjustments

This migration amendment will significantly increase pecuniary and civil penalties to deter potential violators and make sure migrant exploitation is dealt with seriously. The maximum civil penalty will more than double, increasing from 90 penalty units to 240 penalty units. The maximum criminal penalty will also increase to 360 penalty units. Currently, each penalty unit is set at $313, meaning the maximum penalty that can be imposed exceeds $110,000. This may be in addition to prison time.

Prohibited Employers

Employers who are convicted under these new offences will be banned from hiring further temporary visa holders for a set period of time. This legislation will see the introduction of prohibition notices that can be issued for a period of 5 to 10 years, or indefinitely depending on the severity of the offence. To be declared a prohibited employer, the following will be considered:

 

  • The seriousness of the offence.
  • The employer’s history of conduct and non-compliance.
  • The impact on migrant workers employed by the employer.
  • The impact that a prohibition notice may have on the employer’s business and broader community.

Public Disclosure

This amendment establishes a system that discloses prohibited employers to the public. If an individual or organisation fails to adhere to migration laws, their details will be published on the Department of Home Affairs website including the employer’s name, ABN (if applicable), the reason they have been declared a prohibited employer, and how long the declaration is in effect for. This enables potential employees to make informed decisions when choosing an employer for their employer sponsored visa.

 

After the declaration period ends, an employer must report any new temporary migrant workers they employ for the next 12 months. This information must be supplied to the Department of Home Affairs within 28 days of commencing their employment.

Encourage Reporting 

The amendment repeals Section 235 of the Migration Act 1958 (Cth), which discouraged migrant workers from reporting non-compliance. Under Section 235, it is an offence if a temporary visa holder breaches a condition of their visa, even when this may be at the fault of their employer. If an employee reports non-compliance from their employer, they currently face punishment too with a maximum fine of 100 penalty units. Repealing this section of the Migration Act will encourage migrants to report cases of exploitation, as well as giving them the same workplace protection as all other workers in Australia.

New Powers for Authorities

To strengthen the enforcement of these legislative changes, the Australian Border Force (ABF) will be given increased powers, funding, and tools. This includes the ability to issue enforceable undertakings and compliance notices when migrant exploitation occurs.

 

Temporary visa holders should be entitled to the same pay, conditions, and workplace protections as Australian workers, and this new legislation is a step in the right direction. Both employers and employees will be impacted by these new conditions. If you are a business looking to sponsor foreign workers or an employee curious about your rights as a migrant worker, AustraliaMigrate is here to help. Contact us today and speak with an immigration specialist to make sure you are prepared for this new era of migrant protection.

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